Terms & Conditions

RedRat Ltd – Standard Terms and Conditions

These terms and conditions apply to the sale of hardware, the licence of software and/or the provision of any consultancy and/or support services to you, the Customer, by us, RedRat Limited, with registered address Abbey House, 51 High Street, Saffron Walden, CB10 1AF, United Kingdom (“RedRat”).

Definitions

In these Terms and Conditions, the following words shall have the following meanings:

“Confidential Information” means the Software and any information which is designated by the party disclosing it to be confidential;

“Hardware” means the hardware forming part of the Equipment when initially delivered to the Customer and excludes the Software;

“Licence” means the licence to use the Software granted by clause 5; “Price” means the total price payable for the Equipment as set out in the Quotation;

“Quotation” means the details of the relevant Equipment and Price and any Support Services provided by RedRat to the Customer;

“Software” means the software forming part of or supplied with the Equipment or the software available for download from RedRat’s website as applicable;

“Support Services” means the services described in clause 6;

“Warranty Period” has the meaning set out in clause 10; and

“Working Hours” means 9am to 5pm UK time Monday to Friday excluding bank and public holidays.

Basis of contract

2.1 – A binding contract subject to these Terms and Conditions shall come into existence between RedRat and the Customer by whichever is the earlier of: i) issuance of a written order confirmation by RedRat to the Customer, ii) delivery of the goods or iii) the issuance of an invoice by RedRat to the Customer.

Delivery of Equipment

3.1 – RedRat shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in its Quotation, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of the Quotation. Time is not of essence as to the delivery of the Equipment and RedRat is not liable for any delay in delivery, however caused.

3.2 – The Customer shall be deemed to have accepted the Equipment when the Customer has had 14 days to inspect it after delivery and has not notified RedRat of any defects in accordance with clause 10.2.

3.3 – RedRat shall be responsible for any damage or loss in transit, provided that shipping costs are to be charged to RedRat and the Customer notifies it to RedRat (or its carrier, if applicable) within three days of receipt by the Customer of the Equipment and that the Equipment has been handled in accordance with RedRat’s stipulations. Any remedy under this clause 3.3 shall be limited, at the option of RedRat, to the replacement or repair of any Equipment which is proven to RedRat’s satisfaction to have been lost or damaged in transit.

3.4 – Where the equipment is supplied for export from the United Kingdom, the Customer shall be responsible for complying with any legislation governing:

3.4.1 – the importation of the Equipment into the country of destination;

3.4.2 – the export and/or re-export of the Equipment and shall be responsible for paying any duties on it.

Title and Risk

4.1 – The Equipment shall be at the risk of RedRat until delivery to the Customer at the place of delivery specified in RedRat’s Quotation.

4.2 – Ownership of the Equipment shall pass to the Customer on the later of completion of delivery, or when RedRat has received in full in cleared funds all sums due to it in respect of the Equipment and all other sums which are due to RedRat from the Customer.

Software licence

5.1 – If RedRat refers to a software licence in the Quotation, the Price shall include the licence fee for the Customer’s right to use the Software in accordance with these Terms and Conditions.

5.2 – Where Software is provided to the Customer, RedRat grants to the Customer a non-exclusive licence to use the Software solely on or in connection with the use of the Equipment and to possess and refer to the Documentation in accordance with this Licence.

5.3 – Save for the RedRat SDK and Software for which the licence fee is included in the Hardware Price, and except to the extent permitted by statute or pursuant to clause 5.4, the Customer shall not reproduce, modify, adapt, merge, translate, disassemble, decompile, recompile or reverse engineer the Software or create derivative works based on the whole of or any part of the Software or incorporate the Software into any other software program not provided by RedRat. The information necessary to achieve interoperability of the Software with other computer software programs is available from RedRat on request.

5.4 – For the avoidance of doubt, the Customer has the right to make backup copies of the Software to the extent such copies are reasonably necessary for the Customer’s own operational security and use within the scope of this Licence.

5.5 – The Customer shall only use the Software and the Documentation for its internal business purposes, and shall not make the Software and/or the Documentation available for use by any third party except for a onetime permanent transfer of all license rights to another party provided that they agree to the RedRat terms and conditions.

5.6 – The Customer shall not copy the whole or any part of the Documentation, and shall not remove any trade mark, copyright or proprietary notices from the Documentation.

Support services

6.1 – In consideration of payment of the Price by the Customer, RedRat shall provide Support Services for the Software and Hardware in accordance with these Terms and Conditions for the period of 24 months from the Effective Date, or such alternative period as is set out in the Quotation. Following expiry of such period, RedRat shall provide any further Support Services requested by the Customer at the Consultancy Rate.

6.2 – RedRat shall provide the following Support Services during Working Hours:

6.2.1 – a helpdesk facility by telephone and/or e-mail, including advice and assistance on issues relating to defects in the Equipment;

6.2.2 – provision of workarounds, patches or other maintenance releases not providing any new functionality issued for the Software;

6.2.3 – repair or, at RedRat’s option, replacement of that part of the relevant Equipment which is defective.

6.3 – Where either:

6.3.1 – performance of the Support Services is made more difficult or costly as a result of the Customer’s failure to inform RedRat of a problem as soon as reasonably practicable; or

6.3.2 – the Customer requests RedRat to perform the Support Services outside Working Hours; or

6.3.3 – the Customer requests that RedRat provides the Support Services at the Customer’s premises RedRat reserves the right to charge the Customer an additional sum for the provision of the Support Services at the Consultancy Rate.

6.4 – RedRat shall use its reasonable endeavours to respond within 1 Working Day to issues notified to RedRat by telephone or email (support@redrat.co.uk).

6.5 – Any consultancy work which is carried out by RedRat for the Customer shall, unless otherwise agreed between the parties, be at the Consultancy Rate.

Upgrades

7.1 – From time to time RedRat may make available upgrades, new versions or other revisions or amendments to the Software, which provide additional features or change the functionality of the Software.

7.2 – Major upgrades (being a change of the Software version number before the first decimal point), shall be provided to the Customer on payment of a fee to be decided by RedRat. Minor upgrades (being any upgrade other than a major upgrade) may, at RedRat’s discretion, be provided to the Customer free of charge.

7.3 – Any upgrades provided to the Customer shall form part of the Software and shall be subject to this Licence.

Price and payment

8.1 – All prices shall be as stated in RedRat’s written Quotation and save where otherwise stated in writing, prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties. The Customer shall be responsible for paying any taxes which arise under these Terms and Conditions save for taxes on RedRat’s income.

8.2 – The Price and any other sums due under this agreement shall be due and payable within 30 days of the date of RedRat’s invoice for payment. Time for payment shall be of the essence and unless otherwise agreed in writing, delivery of the Equipment will not be made to the Customer until RedRat has received the relevant Price.

8.3 – RedRat shall invoice the Customer for the amount of the Price on or following the Effective Date. Any other sums due under these Terms and Conditions shall be invoiced monthly in arrears. If the Customer does not pay the Price and any other sums due under these Terms and Conditions within 30 days of the date of the relevant invoice, RedRat reserves the right to charge interest at a daily rate on all sums outstanding until payment in full is received at a rate of 4% above the UK base lending rate of Barclays Bank plc from time to time or to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

Intellectual property rights

9.1 – The Customer acknowledges that RedRat owns or is licensed to use, all copyright and other intellectual property rights of whatever nature in and relating to the Equipment together with any consultancy, development, customisation and/or configuration work carried out by RedRat under the provisions of these Terms and Conditions. Nothing contained in these Terms and Conditions shall be construed as an assignment or transfer of any copyright or other intellectual property rights in the Equipment and/or the Software.

9.2 – The Customer shall refrain from analysing the Equipment except to the extent necessary to use the Equipment in accordance with these Terms and Conditions.

9.3 – RedRat warrants that the use and licence of the Equipment and Software in accordance with these Terms and Conditions will not infringe the copyright belonging to any third party.

9.4 – Subject to clause 9.5, in the event of any claim being brought against the Customer that the normal use or possession of the Equipment or Software in accordance with these Terms and Conditions infringes the copyright of a third party, RedRat hereby indemnifies and will keep indemnified the Customer against any damages that are awarded to be paid to any such third party in respect of a claim and any losses, costs (including all legal fees) and expenses incurred by or on behalf of the Customer provided that the Customer:

9.4.1 – shall as soon as reasonably practicable notify RedRat in writing of any such claim of which it becomes aware;

9.4.2 – does not make any admission as to liability or compromise or agree any settlement of any claim without the prior written consent of RedRat, which consent shall not be unreasonably withheld or delayed, or otherwise prejudice RedRat or any other third party’s defence of any claim;

9.4.3 – gives RedRat, or such person as RedRat shall direct, immediate and complete control of the conduct or settlement of all negotiations and litigation arising from any claim; and

9.4.4 – upon payment of its reasonable costs, gives RedRat and such other third parties as RedRat shall direct all reasonable assistance with the conduct or settlement of any such negotiations or litigation.

9.5 – In the event of a claim that the use by the Customer of the Equipment or Software in accordance with the provisions of these Terms and Conditions infringes the copyright of a third party, RedRat shall have the right in its absolute discretion and at its own expense:

9.5.1 – to procure the right for the Customer to continue using the Equipment and/or Software in accordance with these Terms and Conditions;

9.5.2 – to make such alterations, modifications or adjustments to the Equipment and/or Software so that they become non infringing;

9.5.4 – to refund the Price paid by the Customer depreciating over a 5 year period.

9.6 – In the event of any claim attributable to the use or possession by the Customer of the Equipment other than in accordance with the provisions of these Terms and Conditions, the provisions of clauses 9.3 to 9.5 shall not apply and the Customer shall indemnify RedRat against all liabilities, costs and expenses which RedRat may incur as a result of such claim.

9.7 – THE FOREGOING STATES REDRAT’S ENTIRE LIABILITY TO THE CUSTOMER IN RESPECT OF THE INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY ARISING OUT OF THE EQUIPMENT OR SOFTWARE.

Warranties

10.1 – RedRat warrants that:

10.1.1 – the Software will perform in all material respects in accordance with the Documentation for a period of 90 days from the Effective Date (to be known as the “Warranty Period” in respect of Software);

10.1.2 – the Hardware will be free from defects in materials and workmanship for a period of 2 years from the Effective Date, (to be known as the “Warranty Period” in respect of Hardware); and

10.1.3 – any Support Services shall be provided with reasonable skill and care.

10.2 – If RedRat receives written notice from the Customer of any breach of a warranty in clause 10.1 then RedRat shall at its own expense and within a reasonable time after receiving such notice, as appropriate: (i) repair or, at its option, replace that part of the relevant Equipment which is defective or otherwise remedy such defect; or (ii) re-perform the relevant Support Services PROVIDED THAT REDRAT SHALL HAVE NO LIABILITY OR OBLIGATIONS UNDER THE SAID WARRANTY UNLESS IT SHALL HAVE RECEIVED WRITTEN NOTICE OF THE DEFECT OR FAILURE IN QUESTION NO LATER THAN THE EXPIRY OF THE RELEVANT WARRANTY PERIOD. The legal and beneficial ownership of any defective Equipment shall revert to RedRat upon the replacement of such defective Equipment, whereupon the legal and beneficial ownership of the replacement Equipment shall vest in the Customer.

10.3 – REDRAT SHALL HAVE NO LIABILITY OR OBLIGATIONS UNDER THE WARRANTIES IN CLAUSE 10.1 OTHER THAN TO REMEDY BREACHES THEREOF BY THE PROVISION OF MATERIALS AND SERVICES WITHIN A REASONABLE TIME AND WITHOUT CHARGE TO THE CUSTOMER.

10.4 – RedRat shall not be liable for any defect in the Equipment which results from:

10.4.1 – Use of the Equipment other than as specified in the Documentation;

10.4.2 – The modification of the Equipment by the Customer;

10.4.3 – The Equipment being subject to unusual physical or electrical stress; or

10.4.4 – Accident, hazard, misuse or failure or fluctuation of electrical power, air conditioning, humidity control or other environmental conditions.

10.5 – EXCEPT AS EXPRESSLY SET OUT IN CLAUSES 9.3 AND 10.1, ALL CONDITIONS, WARRANTIES, TERMS AND UNDERTAKINGS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, TRADE PRACTICE, CUSTOM, COURSE OF DEALING OR OTHERWISE (INCLUDING WITHOUT LIMITATION AS TO QUALITY, PERFORMANCE OR FITNESS OR SUITABILITY FOR PURPOSE) IN RESPECT OF THE EQUIPMENT INCLUDING THE SOFTWARE ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW.

Limitation of Liability

11.1 – Nothing in these Terms and Conditions shall exclude or restrict the liability of either party to the other for death or personal injury resulting from the negligent act of one party or for liability for any fraudulent misrepresentation by a party to these Terms and Conditions.

11.2 – SUBJECT TO THE PROVISIONS OF CLAUSES 11.1 AND 11.3 THE LIABILITY OF REDRAT TO THE CUSTOMER FOR DIRECT LOSS IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE CUSTOMER’S USE OF THE EQUIPMENT AND/OR THE SOFTWARE SHALL BE LIMITED FOR ANY ONE INCIDENT OR SERIES OF CONNECTED INCIDENTS TO THE AMOUNT PAID OR PAYABLE UNDER THESE TERMS AND CONDITIONS TO REDRAT BY THE CUSTOMER.

11.3 – SUBJECT TO THE PROVISIONS OF CLAUSE 11.1, IN NO CIRCUMSTANCES SHALL REDRAT BE LIABLE TO THE CUSTOMER WHETHER IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE IN RESPECT OF LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS OPPORTUNITY, LOSS OF OR COST OF RESTORATION OF DATA OR ANY OTHER INDIRECT, CONSEQUENTIAL, FINANCIAL OR ECONOMIC LOSS OR DAMAGE COSTS OR EXPENSES WHATSOEVER OR HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE CUSTOMER’S USE OF THE EQUIPMENT.

Termination

12.1 – The Licence shall commence on the date of delivery of the Equipment and shall continue until this agreement is terminated in accordance with this clause 12.

12.2 – Either party may terminate the provision of Support Services following expiry of the Warranty Period on not less than 90 days written notice to the other.

12.3 – This agreement may be terminated immediately by either party if:

12.3.1 – the other commits a material or persistent breach of any term of the Terms and Conditions and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same; or

12.3.2 – the other party cease or threatens to cease to carry on business: or

12.3.3 – an interim order is made, or a voluntary arrangement approved, or if a petition for bankruptcy order is presented or a bankruptcy order is made against the other party or if a receiver or trustee is appointed of the other party’s estate or a voluntary arrangement is approved or a notice is served of intention to appoint an administrator or an administrator is appointed by Court order or by any other means, or a receiver or administrative receiver is appointed over any of the other party’s assets or undertaking or a resolution or petition to wind up the other party is passed or presented (otherwise than for the purposes of reconstruction or amalgamation), or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding up petition or make a winding up order.

12.4 – Any termination of this agreement shall be without prejudice to any other rights or remedies either party may be entitled to under these Terms and Conditions or at law.

12.5 – Within seven days of the termination of this agreement (by either party for whatever reason) the Customer shall, at RedRat’s option, either return to RedRat or destroy all copies of the Software and Documentation in its possession and a duly authorised officer of the Customer shall certify in writing to RedRat that the Customer has complied with such obligation.

General

13.1 – The failure or delay of a party to exercise or enforce any right under these Terms and Conditions shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any time or times thereafter.

13.2 – These Terms and Conditions (together with the relevant Quotation and order confirmation) constitute the entire understanding between the parties with respect to the subject matter of these Terms and Conditions (save where the parties have agreed in writing to alternative RedRat licence terms), and supersedes and replaces all prior agreements, negotiations and discussions between the parties relating to the subject matter of these Terms and Conditions including without limitation any terms which are attached to or purported to be incorporated in the Customer’s order. The Customer confirms and acknowledges that it has not been induced to enter into these Terms and Conditions by any representation, warranty, or undertaking not expressly incorporated into it. However, nothing in these Terms and Conditions purports to exclude liability for any fraudulent statement or act.

13.3 – No variation of these Terms and Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.

13.4 – Neither party shall be liable for any delay in or for failure to perform its obligations under these Terms and Conditions, other than an obligation to make any payment due to the other party, if that delay or failure is caused by circumstances beyond the control of that party including, without limitation, fires, strikes, insurrection, riots, embargoes, failure of a telecommunications or internet service provider, lack of availability of parts, or regulations of any civil or military authority.

13.5 – No person who is not a party to these Terms and Conditions shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions.

13.6 – If any provision of these Terms and Conditions shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from these Terms and Conditions and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of these Terms and Conditions which will remain in full force and effect.

13.7 – Any notice to be given under these Terms and Conditions shall be in writing and shall be delivered by hand, sent by first class post or sent by facsimile (such notice to be confirmed by letter posted within 12 hours) to the address of the other party. Any such notice or other document shall be deemed to have been served: if delivered by hand – at the time of delivery; if sent by post – upon the expiration of 48 hours after posting; and if sent by facsimile – at 9.00 am on the next business day after the facsimile was dispatched.

13.8 – These Terms and Conditions shall be governed by and construed and interpreted in accordance with English law and the parties hereby submit to the nonexclusive jurisdiction of the English Courts